The opinion of the court was delivered by: WILLIAM CALDWELL, Senior District Judge
The Defendant, Harvey Holland, filed a motion to vacate his
sentence pursuant to 28 U.S.C. § 2255. In a memorandum and order
dated February 18, 2005, we denied three of his claims and
scheduled a hearing to address the remaining claims. A hearing
was held on June 22, 2005. This memorandum addresses the
remainder of the Defendant's claims.
On June 6, 2002, following a jury trial, the Defendant was
convicted of distribution and possession with intent to
distribute fifty grams or more of crack cocaine in violation of
21 U.S.C. § 841 (a) (1) and 18 U.S.C. § 2 (Count II) and
conspiracy to distribute and possess with the intent to
distribute fifty grams of more of crack cocaine in violation of
21 U.S.C. § 846 (Count V). The Defendant was sentenced to
concurrent terms of life imprisonment on both counts,*fn1 five years supervised
release on all counts, an assessment of $200, and a fine in the
amount of $4000. Holland had also been charged with the murder of
Jason Harrigan. However, the jury was unable to reach a verdict
on that count and a mistrial was entered at the request of the
Holland appealed his conviction. The Defendant's appeal was
denied by the Third Circuit on September 30, 2003. United States
v. Holland, 76 Fed. Appx. 452 (3d Cir. 2003) (Holland I).
Holland petitioned for certiorari to the United States Supreme
Court and on January 12, 2004, certiorari was denied. Holland v.
United States, 540 U.S. 1135, 124 S. Ct. 1114, 157 L. Ed. 2d 942
(2004). On October 18, 2004, the Defendant initiated these § 2255
proceedings pro se. In response to our order under United States
v. Miller, 197 F.3d 644 (3d Cir. 1999), he moved to amend his
motion. We allowed him to amend and directed the Government to
file a response. The Government requested a hearing in order to
fully address the motion. In our February 18, 2005 order, we
addressed several of the Defendant's claims,*fn2 appointed
counsel for the Defendant, and scheduled a hearing on the
following claims: (1) that counsel was ineffective for failing to
conduct a pre-trial investigation; (2) that counsel was
ineffective for failing to interview, investigate, and
cross-examine witnesses; (3) that counsel was ineffective for failing to investigate the
pre-sentence report to correct mis-statements of fact; (4) that
the trial court abused its discretion at sentencing by assuming
the truthfulness of statements made at sentencing and that
counsel was ineffective for failing to address these
inconsistencies; (6) that counsel was ineffective for failure to
inform the Defendant of a possible plea bargain; (7) that counsel
was ineffective at trial and on appeal for failing to object to
errors made by the court when charging the jury, including the
failure of the court to properly record sidebars; and (8) that
counsel was ineffective at trial and on appeal for failing to
object to the Government's use of co-conspirators' guilty pleas
as substantive evidence of the Defendant's guilt.
A hearing was held on June 22, 2005. The parties have filed
post-trial briefs and the remainder of Defendant's claims are now
ripe for disposition.
III. Ineffective assistance of counsel
The majority of Holland's claims allege ineffective assistance
of counsel. These claims are governed by the standard set forth
in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052,
80 L. Ed. 2d 674 (1984). Strickland held that an ineffective
assistance of counsel claim requires the petitioner to show: (1)
that his counsel's performance fell below an objective standard
of reasonableness; and (2) that the deficient performance prejudiced the defense. Strickland, 466 U.S. at 687-88,
104 S. Ct. at 2064. The reasonableness of counsel's conduct must be
judged in light of the facts of the particular case at the time
of the event. Strickland, 466 U.S. at 690, 104 S. Ct. at 2066.
In analyzing that performance, the court must make every effort
"to eliminate the distorting effects of hindsight," and determine
whether "in light of all the circumstances, the identified acts
or omissions were outside the wide range of professionally
competent assistance." Id.
Once it is found that counsel's performance was deficient, the
court must determine if "there is a reasonable probability that,
but for counsel's unprofessional errors, the result of the
proceedings would have been different." Strickland,
466 U.S. at 694, 104 S. Ct. at 2068. A reasonable probability is a
probability sufficient to undermine confidence in the outcome.
A. Pre-trial investigation
The Defendant's first claim is that trial counsel was
ineffective for failing to conduct a pre-trial investigation.
Specifically, Holland argues that had counsel conducted a
thorough pre-trial investigation, he would have informed the jury
that the Defendant was incarcerated during the majority of the
drug conspiracy. The indictment charged Holland with conspiracy to distribute
and possess with the intent to distribute fifty grams or more of
crack cocaine and alleged that the conspiracy began on or about
January 1, 1997 and continued through the end of April 2001. The
Defendant was incarcerated in New Jersey from July 15, 1997 until
July 20, 1998. (Doc. 337, Hearing Tr., Def. Ex. 1). He further
asserts that he was arrested on September 12, 2000, and held
until his trial. However, the Defendant's pre-sentence report
indicates that he was arrested on September 15, 2000, September
24, 2000, January 4, 2001, February 21, 2001, and February 28,
2001, for various offenses committed during those months. As a
result, we cannot accept Holland's assertion that he was
continually incarcerated during the later part of the conspiracy.
At the hearing, Defendant's trial counsel testified that
although he was aware that Holland was incarcerated for certain
periods during the drug conspiracy, he did not want to present
testimony to the jury about burglaries and robberies because of
the murder charge. (Doc. 337, Hearing Tr. p. 29). He feared that
the jury may infer that those types of crimes were crimes of
violence and conclude that violence was consistent with Holland's
character. (Id.). He also testified that the evidence presented
at trial was not inconsistent with the theory that even though
the Defendant was incarcerated at some point during the
conspiracy, he still participated. (Id. at 29-30). Further,
since Holland was not going to testify, counsel's strategy was not to tell the jury
about the previous convictions. (Id. at 30-1).
The Defendant was incarcerated for a year at the beginning of
the conspiracy and then intermittently after September 12, 2000.
However, for a majority of the conspiracy, he was not in prison.
We fail to see what benefit he would have derived from the
presentation of an imperfect alibi to the jury. Given that
Holland was on trial for not only a drug conspiracy, but also a
murder, it was a reasonable tactical decision for ...